CRIMINAL PRACTICE: Right to Counsel
Alert: The trial court did not have to inform defendants of the dangers of proceeding pro se before they entered their guilty pleas without the assistance of counsel.
Subject Matter Index: Revision; dissent added.
Headnote: In Parks v. McClung, S99A0712 (11/23/99), 99 FCDR 4153 (12/3/99), the Supreme Court affirmed the denial of habeas corpus relief to Shelley L. Parks and Curtis W. Baker, holding that the fact that the trial court advised Parks and Baker of their right to counsel after they entered their guilty pleas to misdemeanors did not invalidate the pleas, since the trial court did not accept the pleas until it sentenced them. The Court has issued a substitute opinion to add a dissent. Benham, C.J., joined by Fletcher, P.J., now dissent to argue that the record did not show that Parks and Baker knowingly and voluntarily waived their right to counsel since they should have been informed of that right before deciding whether to plead guilty. The full text of the new dissent is published below.
Text: Thompson, Hugh P., JusticeBENHAM, Chief Justice, dissenting.
Because I do not agree that this Court can decide on the record of this case that the petitioners made knowing and intelligent waivers of their right to counsel at the hearing at which they entered guilty pleas, I must dissent from the affirmance of the habeas corpus court's denial of the writ of habeas corpus.
In holding that the petitioners' waivers were valid because their right to counsel was explained to them at some point in the guilty plea "process," the majority opinion ignores the fundamental principle for which it cites Von Moltke v. Gillies, 332 U.S. 708, 721 (68 SC 316, 92 LE2d 309) (1948), that the right to counsel is as important to a defendant who must decide whether to plead guilty as it is to a defendant who stands trial. While it may be correct that sometime during the "process" of petitioners' guilty pleas, their right to counsel was explained, it is clear from the record that they were required to announce their pleas before such explanations were complete. Thus, although the U.S. Supreme Court expressed in Von Moltke, supra, the importance of counsel in making the decision whether to plead guilty, the majority opinion finds it acceptable that defendants be acquainted with that right only after having made the decision to enter a guilty plea. A right which is explained to a defendant only after the defendant has begun the "process" of pleading guilty by admitting guilt is a hollow right indeed. I believe the petitioners in this case were entitled, prior to announcing their pleas, to be acquainted with their right to the assistance of counsel in making the decision whether to plead guilty.
Furthermore, the majority opinion rejects the applicability of Faretta v. California, 422 U.S. 806 (95 SC 2525, 45 LE2d 562) (1975), to guilty plea hearings with a paucity of rationale. If, as the U.S. Supreme Court held in Godinez v. Moran, 509 U.S. 389, 399 (113 SC 2680, 125 LE2d 321) (1993), the important matter to be determined in a Faretta inquiry is not whether the defendant has the ability to conduct a trial without the benefit of counsel, but whether the defendant has the ability to make a knowing and intelligent waiver of the right to counsel, then the rights protected by Faretta would be at least as applicable to guilty plea hearings as to trials. It appears, therefore, that Faretta applies equally to waivers of counsel in the context of guilty plea, yet the habeas corpus court's order denying relief included no findings regarding whether the trial court undertook an appropriate inquiry to determine whether the petitioners here had the capacity to waive their right to counsel. Rather than dismissing Faretta out of hand, this Court should, at the least, remand this case to the habeas corpus court for further inquiry regarding the process used in securing from these petitioners, after they had announced their decision to plead guilty, a waiver of the right to be assisted by counsel in making the decision to plead guilty.
Since the record of this case does not support the majority's holding that the petitioners' waivers of counsel were intelligent and knowing, and since the majority disregards the requirements of Faretta, I cannot join in the affirmance of the habeas corpus court's denial of relief to the petitioners.
I am authorized to state that Presiding Justice Fletcher joins in this dissent.
Trial Judge: Thad W. Gibson, Sumter Superior Court.,
Attorneys: Robert E. Toone Jr. and Stephen B. Bright (Southern Ctr. for Human Rights), Atlanta, for appellants. George R. Ellis Jr. (Ellis, Easterlin, Peagler, Gatewood & Skipper), Americus, for appellee. Amicus appellants: Mary W. Whiteman (Whiteman & Whiteman), Decatur, Michael B. Shapiro and James C. Bonner Jr. (Georgia Indigent Defense Council), Atlanta.,